Embryos as property in family law proceedings: The implications of and questions arising from Leena & Leena

The common law has long been plagued by the question of whether there
can be property in human tissue and, if so, what kinds of human tissue. In no
area is such a decision more challenging than when it comes to reproductive
material, particularly given the increasing use of artificial reproductive
technology. This article considers the implications of Riethmuller J’s recent
decision, Leena & Leena, where his Honour found that stored embryos were
property for the purpose of s 79 of the Family Law Act 1975 (Cth) (FLA).
While similar matters have come before family courts in Australia and
overseas historically, never have embryos been considered property, despite
many cases finding that gametes can be the subject of property rights
at common law. This article questions whether s 79(2) of the FLA, and family
law property jurisprudence more generally, is an appropriate and adapted
tool for deciding what happens to embryos upon the breakdown of a
relationship.